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THE NEW DESPOTISM 


AN ADDRESS 

BY 

WENDELL PHILLIPS STAFFORD 

ASSOCIATE JUSTICE OF THE SUPREME COURT 
OF THE DISTRICT OF COLUMBIA 


Document 
No. 344 


BEFORE THE NEW YORK COUNTY LAWYERS’ 
ASSOCIATION AT ITS ANNUAL BANQUET 
FEBRUARY 17, 1912 





PRESENTED BY MR. SUTHERLAND 
February 26, 1912.—Ordered to be printed 


WASHINGTON 

1912 


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THE NEW DESPOTISM. 


[An address before the New York County Lawyers Association, at its annual banquet February 17, 1912 

By Wendell Phillips Stafford, Associate Justice of the Supreme Court of the District of Columbia.] 

My native State, in its bill of rights, declares that the safety of 
free government will be found in “a frequent recurrence to funda¬ 
mental principles/’ In the few moments allotted to me to-night 
I wish to examine the judicial recall in the light of those principles. 

We have built our institutions on the proposition that the people 
have the right to rule. Their will is made known through the suf¬ 
frage. And when opinions differ, as they usually do, the majority- 
must govern. But that is not the whole of the proposition. If it 
were, there would be no safeguard whatever for the rights of the 
minority. The majority might appropriate their property. It 
might reduce them to slavery. It might even take away their lives. 
The proposition takes for granted, then, certain guaranties for the 
protection of the minority. And what are these? They are those 
elementary rights which no majority, however large, may ever 
violate. They have been recognized in constitutions and bills of 
rights, but they were not created by them. They inhere in free 
government itself, for human freedom is impossible without them. 
Among these rights there is none more important than this, that 
no citizen shall be deprived of his liberty or property except by the 
judgment of the law, and after a trial before an independent and 
impartial tribunal. We have now come to the keystone of the arch. 
It is this: The majority of the legal voters can not constitute itself this 
tribunal. If it can, it still holds the property and lives of the minority 
in its hands, subject to its mere will and pleasure, for there is no one 
who can call it to account. 

The cases that may come before the tribunal are of two classes. 
First, those between individuals merely. Second, those in which 
one of the parties is, in fact, if not in name, the people themselves, 
or the popular majority. By far the most important and most 
trying cases will be those of the second class, in which it is contended 
that some fundamental right of the individual or the minority is 
being violated. The violation will be attempted under the form of 
law, and thus the real party upon one side is the people, or the pop¬ 
ular majority, whose will has here found expression in the form 
of law. In such cases how is the independence and impartiality 
of the tribunal to be secured? How except by removing it as far 
as possible from dictation by either party? Let it be remembered 
that the tribunal, the court, has been created and its members chosen 
by one of the parties to the controversy, namely, the people. Clearly, 
then, the only security the other party can have is this: That the 
tribunal, once it is created and its members chosen, shall be permitted 
to decide without further interference. If it is to be checked and 

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THE NEW DESPOTISM. 


overawed by one of the parties; if, the moment it decides the case 
against that party, its power is to be taken from it and bestowed 
upon others, then it is the party that decides the case, not the tribunal. 

Let us inquire whether this reasoning fits the facts of the present 
time. Take but one example. A popular majority, through the 
legislature elected by it, or more directly by the initiative and refer¬ 
endum, enacts a statute requiring railroads to carry passengers for 
1 cent a mile. A test case comes before the court. The railroad 
insists that the act robs it of its property, and the court so holds. 
Thereupon the same popular majority votes the judges out of office 
and elects to fill their places judges who will reverse the decision. 
Has not the popular majority constituted itself the court? May a 
man be the judge in his own case ? 

Let us test the measure by another fundamental principle. A 
despot makes the law and also decides whether the particular case 
comes within the law. Or he may just as well dispense with the law, 
since no one can question his decision that the case comes within it. 
On the other hand, in a free government one body makes the law, 
the general rule, while another body decides whether the particular 
case falls within the rule. Thus the citizen is protected. We call 
it keeping the legislative and judicial departments separate. In a 
despotism they are united. In a free government they are separate. 
Now if the popular majority not only makes the law but also decides 
whether a given case falls within it, then the legislative and judicial 
powers are united in the same body and the government ceases to be 
free and becomes a despotism. 

If it be objected that the argument proves too much, since by this 
reasoning the rule should be, once a judge always a judge, my answer 
is twofold. First, I hold with Hamilton that the judicial tenure 
ought to be nothing less than during good behavior. Second, if the 
judges are to be elected for limited terms, those terms should be at 
least of such a length that the judge’s reelection should not depend 
upon his decision of some particular case or question, but upon his 
general worthiness to be a judge. 

The argument for the recall assumes that judges are only agents 
of the majority, and easily reaches the conclusion that when the 
agent fails to satisfy his principal he may rightly be recalled. The 
fallacy in the argument is in the assumption that the judge is an 
agent. He is not an agent in any proper sense of that w 7 ord. He is 
not the agent of either party to a cause. He is not even the agent of 
both parties. If his ctuty were to trade and compromise between 
them, he might be considered the agent of both. But that is not his 
duty. His duty is to decide. It is not for him to please, nor to seek 
to please, either party. It is for him to decide the question between 
them as law T and justice requires. 

But some one will say: ‘'The Constitution with its guaranties was 
adopted by the popular majority. Can you not trust it to abide by 
the work of its own hands?” Sir, I believe in the people, but I 
should not wish to see even the Bill of Rights subjected to the chances 
of every popular election. The making of a constitution is a work 
of momentous import. Statutes stand for what the people think 
from year to year. Constitutions stand for what they think from 
generation to generation. When a change in the organic law is pro¬ 
posed; when society has been stirred to its depths by the interest 


THE NEW DESPOTISM. 


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excited; when the strongest intellects of the time have spent their 
powers upon the question; when it has been debated in all its bear¬ 
ings; and when the people, conscious of the tremendous issues 
involved, have solemnly weighed and decided for themselves and 
their posterity, I am willing to leave the question in their hands. 
But what resemblance has that to the proceedings we are discussing 
now? Another thing. When a constitution is to be adopted or 
amended the question submitted is in its nature general. It is a law. 
But when a controversy arises before a court it is concrete, and the 
question is apt to be whether the case falls within the law. Perhaps 
no one would be ready to propose that the Constitution should be 
changed, and yet a multitude may wish to have it decided that the 
party is not entitled to the protection of the Constitution in the case 
at bar. Now that is a question which a popular assembly is not 
adapted to try, nor qualified to decide. It is necessarily a question 
for a court. 

If judicial opinions are to be reviewed at popular elections, why 
should not judges be instructed beforehand how to decide questions 
that are certain to arise? They would be saved the possibility of 
making a mistake. If that is not to be done the greatest jurist 
will be the one who shows himself most expert and nimble in keeping 
on the side of the majority. 

When the King asked Lord Coke how he would decide a certain 
question if it came before him he replied, “When that case arises I 
will decide it as shall befit a judge.” History has recorded the an¬ 
swer with a proud smile. When democracy asks that question of 
her judges shall they answer with less dignity and self-respect than 
the chief justice of the Stuarts ? When Prince Hal struck the lord 
chief justice on the bench and went to jail for it, the King shed happy 
tears that he had a judge who dared administer the law even to the 
heir apparent, and that he had a son who in his sober second thought 
accepted the judgment of the law. Has free America in the twen¬ 
tieth century less reverence for law than the House of Lancaster had 
500 years ago ? In one respect the Roman tribunes performed for the 
Roman people the office that our judges do for us—they had the 

E ower to veto laws that struck at fundamental rights. You remem- 
er that when the plebs were advised to do away with tribunes by 
those whose purpose had been thwarted by them the tribunes re¬ 
called the people to their senses with a fable. Once upon a time, they 
said, the wolves advised, the sheep to get rid of their watchdogs, 
because they interfered with the sheep going where they pleased and 
were really "the only obstacle to a perfect understanding between the 
forest and fold. When, afterwards, the people did give up their 
tribunes, they lost their liberty, and they never regained it till they 
got them back. Your watchdog may annoy the sheep when they 
wish to go astray—he may even nip one of them now and then, as 
he tries to bring them back, but let the flock think twice before they 
exchange the watchdog for the wolf. 

In that terrible indictment against George III which Thomas Jeffer¬ 
son drew in the Declaration of Independence, two of the heaviest 
counts were these: 

He has obstructed the administration of justice by refusing his assent to laws for 
establishing judiciary powers. 

He has made judges dependent on his will alone, for the tenure of their offices, and 
the amount and payment of their salaries. 


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Are we prepared to accept another George III in the shape of a 
popular majority? 

Our day has witnessed the first widespread and determined effort 
to secure the establishment of a permanent international court. 
The world’s confidence in courts has become so deeply rooted that 
we have reason to hope that the end of war is in sight. Is it not re¬ 
markable that our day should have witnessed also a serious and cal¬ 
culated effort to abolish courts altogether? That two such propo¬ 
sitions should have been the birth of the same time will be one of the 
marvels of history. 

The proposal to recall judges for unpopular decisions is nothing 
less than a proposal to abolish courts. To abolish courts is to abolish 
freedom. However innocent the motives of those who propose this 
measure, no deadlier blow was ever aimed at thq heart of human 
liberty than this. The people have only to understand it to reject 
it. They are not ready to throw away the fruits of their long labors 
and unnumbered battles—labors endured and battles waged for this 
very thing, that under the broad shield of a sacred and inviolable 
justice the weakest or most hated might rest secure in their liberty, 
their property, their lives. They will discover the tyrant under this 
flattering disguise. And in the end they will consign to obloquy the 
names of those who would have tempted them to their destruction. 


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